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California Considers Regulating Food Packaging Under Green Chemistry Initiative

March 23, 2018

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As part of its Green Chemistry Initiative and the Safer Consumer Products (SCP)implementing regulations, California’s Department of Toxic Substances Control (DTSC) has released its Draft Three Year Priority Product Work Plan (2018-2020).  The Plan indicates that for the first time it will “address exposures from harmful chemicals that migrate from consumer products into food.”

DTSC selected a total of seven product categories to include in the Plan. Five categories have been carried over from the 2015-2017 Plan:

  • Beauty, personal care, and hygiene products
  • Cleaning products
  • Household, school, and workplace furnishings and décor
  • Building products and materials used in construction and renovation
  • Consumable office, school, and business supplies

DTSC has also added two additional categories – food packaging and lead-acid batteries. Clothing products and fishing and angling equipment, two of the product categories from the prior Plan, will not be evaluated under this Plan.

The Plan

Slack Fill Class Actions Continue to Flood The Courts

As we reported last year, slack fill litigation remains on the rise.  Plaintiffs continue to file consumer lawsuits – typically putative class actions – alleging food packaging is deceptive because it contains empty space, or nonfunctional slack fill, and disguises the amount of product in the package.

This roundup of recent decisions demonstrates that more plaintiffs are getting past early pleading challenges but likely will face significant barriers to success at summary judgment and class certification.

On February 16, 2018, a Missouri federal district court denied Nestlé’s motion to dismiss in Hawkins v. Nestlé USA, Inc., No. 4:17CV205 -HEA, 2018 WL 926130 (W.D. Mo. Feb. 16, 2018) challenging allegations that boxes of Raisinets candy contain 45% nonfunctional slack fill. In its motion to dismiss, Nestlé argued that a reasonable consumer would instantly realize the package was half-empty because of its “maraca-like rattle.” Id. at *5. The court rejected this

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